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The “people aren’t perfect, he made a mistake” theory of criminal law

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AKA the “hasn’t he suffered enough?” defense, ably articulated this morning by California’s senior senator:

A top Senate Democrat defended David Petraeus on Sunday, saying the Justice Department erred in recommending charges against the former top Army general and Central Intelligence Agency director.

“This man has suffered enough in my view,” Sen. Dianne Feinstein of California, the former Senate Intelligence Committee chairwoman, told Gloria Borger, CNN chief political analyst on CNN’s “State of the Union.”

Her comments come after news that the Justice Department is recommending charges against Petraeus, first reported by The New York Times.

Feinstein called Petraeus, who led U.S. efforts in Iraq and Afghanistan under President George W. Bush and later President Barack Obama, “the four-star general of our generation” and “a very brilliant man.”

She said Petraeus’ affair with Paula Broadwell, his biographer, and his allowing her access to some classified government documents while she was with him was a mistake — but not one for which he should face criminal charges.

“It’s done, it’s over. He’s retired. He’s lost his job,” Feinstein said. “I mean, how much does government want?”

Her comments came on the heels of similar criticism by Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina, who called the investigation “grievously mishandled.”

Note: Defense not applicable in all cases.*

*Use this easy test to check whether you’re eligible to have your advocates employ this line of argument in the offices of the executive branch and the courts of public opinion:

If you passed classified information to your mistress, how many senators would appear on Sunday morning talk shows to talk about what a great person you are?

(a) Zero.

Stop. Do not pass Go. Do not collect $2,000,000 from Kohlberg Kravis Roberts.

(b) One.

Defense may be applicable in your case. Consult the editorial board of the Washington Post for further guidance.

(c) Two or more, at least one of which is from each major party.

Congratulations, you are a Genuine American Hero(tm), and as such outside the jurisdiction of federal criminal law. Please be sure to collect your Augusta National Golf Club membership and other complimentary gifts at the door.

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